Opinion 320
Jury Nullification Arguments by Criminal Defense Counsel

(The August 2003 Washington Lawyer “Speaking of Ethics ”column addressed the issue of “jury nullification” and its advocacy by criminal defense attorneys. Opinion 320 was the focus of the column and this opinion makes recourse to diverse jurisprudence and legal history, in addition to Rules 1.3 (Diligence and zeal),3.1 (Meritorious Claims and Contentions),3.3 (Candor Toward the Tribunal), and 8.4 (Misconduct). )

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The Committee has received an inquiry on a matter of criminal law advocacy: Do the District of Columbia Rules of Professional Conduct prohibit an attorney for a criminal defendant from pursuing a “jury nullification” argument? The inquirer notes that the limited authority on the subject seems in conflict. …

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The power of a jury to nullify a prosecution—by which we mean the jury’s decision to acquit the defendant despite its conclusion that he committed the offense, because of its disavowal of the law or circumstances under which the defendant is charged … has a long and storied history in American law. …

In … early periods of American history, the power of the jury to nullify the law was explicit and affirmatively approved. With the turn of the 20th century, however, the law has developed a more strict separation between the domain of the court (to say what the law is) and the domain of the jury (to determine the facts). … The question is when, if ever, do such invitations by criminal defense lawyers violate the Rules of Professional Conduct.

Criminal defense lawyers representing an accused play a unique role in our legal system. They, perhaps more than any other attorneys, have a duty to “represent a client zealously and diligently within the bounds of the law.” See D.C. Rule 1.3. Indeed, lawyers defending a criminal case are authorized to engage in conduct that, in other contexts, might seem inconsistent with the spirit of the Rules.

Defense counsel are not only permitted but also required, for example, to defend an adversarial proceeding and “require the government to carry its burden of proof” whenever the client elects to contest the proceeding. See D.C. Rule 3.1…They must do so even if convinced that their client’s guilt of the offense charged can be proven beyond a reasonable doubt… Accordingly a defense lawyer may always oblige the government to prove its case, without violating the Rules of Professional Conduct. … In this regard, the Rules act uniquely to assure that criminal defense lawyers will do their utmost in zealously representing a client.

Similarly, while most lawyers operate under an absolute obligation of candor to the tribunal, in this jurisdiction defense counsel who are unable to dissuade their clients from presenting false evidence and cannot withdraw from the representation without harming the client may put their client on the stand to testify in a narrative fashion. See D.C. Rule 3.3(b)…

Although counsel may not argue this false evidence to the jury they nonetheless can participate indirectly in its presentation. … This D.C. provision, which reflects solicitousness to a defendant’s right to testify, seeks to assure that a criminal defense lawyer’s ethical obligations do not abridge a defendant’s right to present a defense.

Notwithstanding the somewhat greater latitude afforded the counsel for a criminal defendant, the lawyer remains subject to ethical restrictions contained in the Rules of Professional Conduct. …

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The District of Columbia has no rule or statute authorizing jury nullification. Both the local courts and the federal courts have rejected assertions that juries are entitled to an instruction apprising them of their “right” to nullify the law. … Indeed, both federal and local courts in this jurisdiction have endorsed jury instructions that are designed to discourage jury nullification. …

… Within this jurisdiction express exhortations to ignore the law are, therefore, likely to be deemed prohibited by law and may, therefore, result in violations of the D.C. Rules of Professional Conduct by lawyers who advocate such a course. See D.C. Rule 8.4.

The Committee recognizes, however, that there are many variant forms that a jury nullification argument made by a zealous advocate can take—forms that may range from explicit requests to ignore the law to far more nuanced arguments that arguably have the same effect …

It is in practice often impossible to distinguish between these two forms of argument. Counsel may often be able to make good-faith evidentiary arguments that have the collateral effect of heightening the jury’s awareness of its capacity to nullify. When do such arguments violate the Rules?

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As we have already noted, some closing arguments may have a good faith basis yet nonetheless have the incidental effect of appealing to a jury’s prejudice or enhancing its awareness of its ability to decide the case against the evidence. … (I)n the context of criminal advocacy that tension should be resolved in favor of permitting any evidentiary argument for which a reasonable good faith basis exists, provided that the lawyer exercises his ability to do so within the constraints of existing law.

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… (U)nless the advocate expressly urges nullification (an expression likely prohibited by the substantive law of this jurisdiction) or has been prohibited by the presiding officer from making a particular argument, a criminal defense counsel may zealously represent his client and may offer any argument for which he has a good faith evidentiary basis. Such arguments should not be deemed a violation of the Rules of Professional Conduct.

…Because a “criminal defense lawyer may take any step required or permitted by the constitutional guarantee of the effective assistance of counsel,” Restatement of the Law Governing Lawyers, § 110, comment f, it is unlikely that any such step for which a reasonable evidentiary basis exists will be deemed to violate the Rules of Professional Conduct.

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Good-faith arguments with incidental nullification effects do not violate the Rules of Professional Conduct. Despite its disfavor, “the law permits a jury to acquit in disregard of the evidence, and . . . such an acquittal is unreviewable.” Watts, 362 A.2d at 710. That power is a necessary consequence inherent in the right to trial by jury. So long as the power to acquit in disregard of the evidence exists, we do not believe that the Rules of Professional Conduct prohibit zealous advocacy by a criminal defense lawyer that appeals indirectly to that power. …